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1 COMMONWEALTH OF MASSACHUSETTS NORFOLK, ss. SUPERIOR COURT No COMMONWEALTH Petitioner v. DAVID FLAVELL Respondent FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER OF JUDGMENT This is a petition under G.L.c. 123A 12 to commit the respondent David Flavell to the Bridgewater Treatment Center as a sexually dangerous person. The case came before this Court for a jury waived trial on August 18 through 23, Although there is no dispute that the defendant has been convicted of a designated sex offense, the parties disagree as to whether the other requirements of the statute have been met. As will be explained below, this Court concludes that the Commonwealth has failed to prove beyond a reasonable doubt that the respondent is a sexually dangerous person within the meaning of G.L.c. 123A. FINDINGS OF FACT The testimony and exhibits before this Court reveal the following facts. David Flavell is a 40 years old African American who was adopted by a Massachusetts family at the age of 2 after living in a series of foster homes in Maryland. He was raised by his adoptive parents in East Bridgewater. He has one sister three years younger. He graduated from high school where he played sports and attended two years of community college. At least until recently, he 1

2 maintained some contact with his adoptive mother and sister, who described him in loving terms. He has been in at least three long term relationships with adult women, and has a son by one of them. He has no history of mental illness. Flavell s involvement with the criminal justice system did not begin until he was 26 years old. It consists exclusively of sexual offenses. Listed in chronological order, those offenses can be summarized as follows: On four different occasions in 1996 in New Hampshire, Flavell was charged with exposing himself and/or masturbating inside or in front of various stores. He was ultimately convicted of indecent exposure and open and gross lewdness, and received a sentence of twelve months. He was released in September In 1997, Flavell was arraigned in Essex Superior Court on charges of assault and battery with a dangerous weapon, assault with intent to rape and indecent exposure. He ultimately pleaded guilty and received a sentence of two and a half years in the House of Corrections, following by three years probation. The victim was an adult woman whom he had met at an American Legion Post bar. She was beaten but not sexually assaulted. Midway through the attack, Flavell stopped, told the woman we have to get you to the hospital and took her back (or allowed her to go back) inside the bar where she got help. Between April 2001 and September 2001, Flavell was charged with open and gross lewdness in connection with separate incidents of exposing himself to women in front of three different stores in Massachusetts. On at least one of these occasions, the woman was with her four young children. These incidents triggered a violation of his probation on the Essex matter and he was sent to the House of Corrections. With regard to the new charges, Flavell received 2

3 a concurrent nine month House of Corrections sentence from the Stoughton District Court, and was placed on two year period of probation by the New Bedford District Court, that probation to terminate in August Flavell was released from jail sometime in In November that year, the Franklin and Taunton Police Departments received information that someone was making phone calls from a public telephone to various agencies which specialized in treating sex offenders both in and outside the state. The caller reported a desire to assault children and made claims to having engaged in such conduct. The Franklin police traced one set of calls to a public booth in front of a Brooks pharmacy and arrested the defendant, who admitted making the calls out of anger. He denied being attracted to children and despite further investigation, there was no evidence that he had engaged in any assaultive behavior against any child. No charges were filed but his probation officer in New Bedford was notified. In April 2003, Flavell was found in violation of his probation by the New Bedford District Court and sentenced to two years in the House of Corrections. Before he was released, the Commonwealth filed a petition to commit him as a sexually dangerous person. He was found not sexually dangerous and released in In August 2007 and then again in March 2008, Flavell was charged in the Boston Municipal Court with making annoying phone calls. These charges stemmed from a series of phone calls made to various mental health organizations, including the National Center for Missing and Exploited Children. The caller described having sexual contact with (or a desire to sexually assault) children. Investigators ultimately determined that the caller was Flavell, who admitted making the calls but denied having any attraction to children. He said that he had made 3

4 the calls because no one would listen. The claims of sexual assault that Flavell made in the calls were all determined to be false. In March this year, a BMC judge placed Flavell on a year of pretrial probation with conditions (described in greater detail below). In February 2008, the Flavell was charged with accosting a member of the opposite sex. The charge stemmed from an incident that occurred that January at a Borders bookstore. The police report states that Flavell followed an adult woman into a ladies bathroom and then peeked under the bathroom stall as she sat on the toilet. Duct tape, a ski mask and gloves were found in Flavell s car when he was arrested a couple of weeks after the incident. Flavell told police that he used the duct tape to repair his clothes and that the ski mask was for the cold, since he had no car and was homeless. The gloves he used for his work as a laborer. A Quincy District Court judge sentenced Flavell to six months in the House of Corrections. This last conviction is the sexual offense which triggered the Section 12 petition now before the Court. In addition to reviewing exhibits and records relating to Flavell s criminal history, this Court heard testimony from five forensic experts who evaluated Flavell to determine if he is a sexually dangerous person under G.L.c. 123A. Three of the five were of the opinion that Flavell was not sexually dangerous. Of those two who did find him sexually dangerous, one of them did not have an opportunity to interview Flavell and thus based her opinion exclusively on the information she obtained from a review of the records. In determining which of the experts were most persuasive, this Court has considered their relative training and experience in treating and diagnosing sex offenders. I have also considered the thoroughness of their investigation into the facts on which they rely for their opinions, and the extent to which those facts support their opinions. This Court found the testimony of those experts testifying on behalf of Flavell to be 4

5 more persuasive. Of particular significance in the opinions and reports of the experts were the following: 1. All of the experts (including those who testified for the Commonwealth) agreed that Flavell did not suffer from a personality disorder (e.g. an antisocial personality). That is because such disorders generally manifest themselves before the age of 15, and Flavell showed no signs of a personality disorder in his teenage years. All of the experts did agree, however, that Flavell suffered (at least at one time) from the mental abnormality of exhibitionism as defined by the DSM-IV, a manual widely accepted by psychologists and psychiatrists as a diagnostic guide for psychological disorders. On the spectrum of sexual misconduct, this is on the less serious end, since it does not involve contact with the victim and the emotional harm it inflicts is more of shock rather than long term trauma. It also tends to wane as the perpetrator ages. 2. Although the experts generally agreed as to the diagnosis for Flavell, they also noted that Flavell s behavior has changed over the years. Thus, the last reported occasion on which Flavell exposed his genitals in public was in After that, he began to make the calls to hotlines and treatment centers, followed by the more recent incident in the Borders bookstore. Although this more recent conduct bears similarities to exhibitionism, is does not fall easily within any category of the DSM-IV. 3. Only one expert (Dr. Rouse-Weir) believed that Flavell suffered from pedophilia. The basis for Dr.-Rouse Weir s opinion was in large part the calls that Flavell made to hotlines and treatment centers expressing a desire to molest children. As the other forensic experts testified, however (including Dr. Quinones for the Commonwealth), it is not clear that the motivation for the calls was for the purpose of sexual arousal. Indeed, it is quite likely that the 5

6 content of the calls was designed less for Flavell s arousal than for the purpose of getting attention, much in the way an exhibitionist draws attention to himself by shocking behavior. Moreover, even if these calls were expressing some sexual fantasy or urge, there is absolutely no evidence that, in Flavell s forty years of existence, he has in fact assaulted children or acted in any way on any attraction to children an attraction which Flavell has consistently denied. 4. The 1996 incident in which Flavell assaulted the woman outside the American Legion Post was more a physical act of violence than it was sexual in nature. More important, it was not characteristic of Flavell s ongoing behavior and appears to be more of an aberration which is not a good predictor for the kind of conduct that he is likely to engage in at present or in the future. Since 1996, Flavell has not engaged in any conduct which was physically intrusive, much less violent. While frightening, the 2008 incident in the Border s book store bathroom did not involve any attempt to touch the woman. Indeed, none of the defense experts regarded this most recent incident as a ratcheting up of Flavell s behavior but simply a change in his modus operandi, which is generally to shock and surprise but not to hurt or to make any physical contact. 5. Perhaps most significant, all three defense experts agreed that Flavell did not suffer from a mental abnormality defined by the statute (as distinguished from the DSM-IV). Each pointed out that a diagnosis under the DSM-IV is not identical to a mental abnormality as defined by the statute. Under G.L.c. 123A 1, a mental abnormality is defined in relevant part as a condition that predisposes a person to the commission of criminal sexual acts to a degree that makes the person a menace to the health and safety of other persons. Dr. Plaud, Dr. Kiley, and Dr. Kriegman all concluded that Flavell is not predisposed to commit acts which pose such a 6

7 menace. This Court found that testimony to be both persuasive and credible, and therefore adopts that aspect of their opinions as part of the Court s fact findings. 6. Although there was general agreement that Flavell is at some risk of reoffending in the future, the three experts testifying for the respondent were of the opinion that Flavell was nonetheless not sexually dangerous. Dr. Kiley reached this conclusion because of the nonviolent risk that [Flavell] poses to the public and the virtual absence of significant antisocial or violent history. He also ruled out the likelihood that Flavell was a pedophile or is likely in the future to behave in a sexually violent manner toward women. Both Dr. Plaud and Dr. Kriegman both focused on the seriousness of the threatened harm that would likely occur if Flavell reoffended, noting that his past history always involved non contact sexual offenses which did not inflict any long term harm against the victim. Again, this Court finds these opinions persuasive and credible and adopts them as findings of fact. With regard to Flavell s willingness to engage in sex offender treatment, the evidence before the Court is generally favorable. Although sex offender treatment was imposed on Flavell (in that it was required as a condition of probation), records from different treatment providers describe Flavell as a sincere and committed participant motivated by a desire to change his behavior. Although the treatment was generally ineffective in preventing Flavell from reoffending, the one exception to this was in 2001 when Flavell was on medication (Prozac) which had the effect of reducing his libido. During the period he was on that medication, he did not pick up any new offense. If Flavell were released from the treatment center, then he would be on another period of 7

8 probation, this time out of the Boston Municipal Court. 1 The treatment plan which is part of that probation, however, is much more extensive than his prior treatment plans and includes as a major component treatment with the drug Lupron, a hormone which decreases sexual urges and has been demonstrated to reduce sexual recidivism more effectively than other drugs (including Prozac). Flavell s treatment will be overseen by Dr. Rene Sorrentino, a psychiatrist who is the medical director of a clinic based in Quincy that specializes in sex offenders. Sorrentino testified before this Court, describing the treatment plan she designed for Flavell which will require not only monthly injections of Lupron but also weekly cognitive behavioral therapy (paid for in large part by MassHealth). In addition to reviewing all of the records relating to Flavell s criminal and treatment history, Sorrentino interviewed Flavell for four hours. She is convinced that he is amenable to treatment and is motivated to participate fully in it. This Court credits Sorrentino s testimony. CONCLUSIONS OF LAW There are three statutory elements that the Commonwealth must prove beyond a reasonable doubt in a Section 12 proceeding like the instant one. First, the respondent must have has been convicted of a sexual offense as that term is defined under the law. Second, he must be suffering from a mental abnormality or personality disorder as defined by the statute. Finally, the Commonwealth must demonstrate that the mental abnormality or personality disorder from 1 This Court is well aware of the fact that the probation is pretrial probation, a violation of which would mean simply that the prosecution was free to pursue the matter to a verdict or plea. However, given that Flavell has essentially confessed to the facts underlying the charge, it is highly likely that, if Flavell were to violate the terms of his pretrial probation, the Commonwealth wold be able to obtain a conviction and a sentence of incarceration. Flavell therefore has a strong incentive to comply with the terms of his pretrial probation. 8

9 which the respondent suffers makes him likely to engage in further sexual offenses if not confined to a secure facility. G.L.c. 123A 1. Each of those elements must be proved beyond a reasonable doubt. See Commonwealth v. Webster, 59 Mass. 295 (1850) (defining that standard to require the fact finder to have an abiding conviction, to a moral certainty, that the charge is true ). There no dispute in this case that the Flavell has been convicted of a sexual offense as defined by G.L.c. 123A 1. The crime of accosting and annoying a person of the opposite sex is among those offenses listed as a sex offense which can trigger a Section 12 petition, added as a result of an amendment to the original statute. What is in substantial dispute are the other two elements. This Court concludes that the Commonwealth has failed to prove beyond a reasonable doubt these two remaining elements. With regard to whether Flavell suffers from a mental abnormality defined by the statute, this Court begins its analysis by noting that a diagnosis of a mental abnormality under the DSM- IV is not the same as a mental abnormality as defined by G.L. 123A. Just as the Commonwealth need not prove that the individual suffers from a mental condition that can be categorized and defined by the DSM-IV, see Dutil, petitioner, 437 Mass. 9, 15 (2002), neither does a DSM-IV diagnosis in and of itself satisfy the Commonwealth s burden of proof. That is because the statutory definition of mental abnormality requires proof, among other things, that the condition afflicting the individual predisposes him to committing sexual acts that pose a menace to the health and safety of other persons. Three of the five experts who testified before this Court were unanimous in their opinions that Flavell was not so predisposed. The single incident on his criminal record which involved physical violence occurred 13 years ago. Since 9

10 then, none of the sexual offenses he has committed have involved physical contact. His last reported act of exposing himself was in 2001; since then, his behavior has been more idiosyncratic but not necessarily more serious. For example, the phone calls were made to people accustomed to dealing with sex crimes; while annoying, the calls likely had only a minimal impact on the recipients. Recognizing that harm is not limited to physical harm and can include emotional harm, all three experts noted that Flavell has typically engaged in behavior that shocks and surprises, but is not of the sort associated with severe or long term emotional trauma. As a result, the experts opined Flavell does not suffer from a mental abnormality as defined by G.L.c. 123A 1. Based on that testimony, this Court therefore concludes that the Commonwealth has failed to prove beyond a reasonable doubt this element of its case. The Commonwealth appears to argue that because the evidence does support a finding that Flavell is an exhibitionist (a mental abnormality under the DSM-IV) and because the legislature has determined that indecent exposure is a designated sex offense under the SDP statute, one who is likely to commit that crime in the future is necessarily a sexually dangerous person; to require the Commonwealth to prove something more (it is contended) would go beyond what the statute itself requires. The Commonwealth relies on Commonwealth v. Grant, 73 Mass.App.Ct. 471 (2009). The Supreme Judicial Court has granted further review in Grant, so that the validity of the Appeals Court s decision is in some doubt. However, even if the decision were to stand, this Court does not read it as compelling a conclusion that, under the particular facts of the case before this Court, Flavell suffers from the kind of mental abnormality that the statute contemplates. As this Court interprets Grant, the error that the lower court made was in requiring that 10

11 there be some evidence presented that the respondent there was likely to cause physical harm. Danger, which includes the concept of menace to others, as it relates to the definition of sexually dangerous person is comprehensive and encompasses not only physical injury but also psychological mental and emotional trauma as well. Grant, 73 Mass. App.Ct. at 477. The trial judge also erred in holding that conduct involving noncontact sex offenses like exhibitionism could never be the basis for concluding that the individual was a sexually dangerous person. As the Appeals Court put it, however, the fact that the defendant committed only noncontact offenses does not immunize him from being classified as a sexually dangerous person. (emphasis added). 73 Mass.App.Ct. at 478. The Appeals Court went on to hold that one who, as a result of a mental abnormality, repeatedly exposes himself may poses a menace to the health and safety of others. (emphasis added). In other words, the fact finder may still find as a matter of fact that the respondent is not predisposed to commit sexual acts to the degree necessary to pose the kind of menace which the statute contemplates. That is precisely what this Court is doing in the instant case. Even if this Court has somehow misinterpreted Grant or the requirements concerning the mental abnormality which the Commonwealth must establish, or if the experts whose opinions this Court has adopted have somehow misstated the statutory basis for their conclusions, I still have a reasonable doubt as the final element of the Commonwealth s case. That is, I am not convinced, to a reasonable and moral certainty, that Flavell is likely to engage in further sexual offenses if not confined to a secure facility. G.L.c. 123A 1. The Supreme Judicial Court has held that likely in this context requires the fact finder to consider the seriousness of the threatened harm, the relative certainty of the anticipated harm and the possibility that successful 11

12 intervention will prevent that harm from occurring. Commonwealth v. Boucher, 438 Mass. 274, (2002). Although all three of the defense experts concluded that Flavell was at a high risk of recidivism, the other two factors set forward in Boucher (the seriousness of the threatened harm, and the likelihood that treatment would be successful) led them to conclude nevertheless that Flavell was not a sexually dangerous person. Dr. Kiley noted the absence of any antisocial personality traits (such a disorder making it more likely that an individual will commit future acts of violence). Although Flavell s victims were strangers, they were not children, nor does the evidence support a diagnosis of pedophilia; therefore, children are not likely to be at risk if Flavell is not committed. Dr. Plaud emphasized the fact that none of the sexual offenses (with the exception of the 1996 New Bedford incident, not strictly sexual in and of itself) involved any physical contact, and that they seemed to have been committed to relieve some anxiety not necessarily sexual in nature. Accordingly, he concluded that Flavell does not pose a significant risk to reoffend in a sexually abusive manner consistent with the definition of a sexually dangerous person. Dr. Kriegman agreed with Dr. Plaud s assessment on these points, opining that Flavell s sexual misconduct seemed largely to be a way to get attention; he further noted that the treatment plan designed by Dr. Sorrentino was thorough and specifically tailored to Flavell. Indeed, this Court was impressed with Dr. Sorrentino s credentials and her proposal to use a combination of medication and cognitive behavioral therapy, both to reduce Flavell s sexual urges and to monitor him closely in a way which itself will make it less likely for him to reoffend. The Commonwealth points out Flavell has not been successful on probation in the past. The proposed treatment plan is really quite different than treatment that Flavell has previously 12

13 participated in, however. Moreover, he appears to be highly motivated: he should be, since his failure to comply would likely result in his incarceration and even a third petition to commit him as a sexually dangerous person. See footnote 1, supra. The Commonwealth also notes that Flavell is homeless and is therefore without the stability which is important to successfully completing probation. His homelessness, however, is due to the fact that he is a registered sex offender who is unable to find housing in many places as a result. Certainly, he should not be penalized for the consequences which the legislature has imposed upon him. CONCLUSION AND ORDER For all the foregoing reasons, the Court finds and concludes that the respondent is NOT a sexually dangerous person. It is therefore ORDERED that he be discharged from the Massachusetts Treatment Center and that he report to his probation officer in the Boston Municipal Court. Dated: September 15, 2009 Janet L. Sanders Justice of the Superior Court 13